If the photo fits, copy it ...

Photo-fits are always a problem;
this was the best they could
do for Merpel ...

In a busy week, a little-publicised Opinion from an Advocate General of the Court of Justice of the European Union (ECJ) can easily be overlooked. However, Tuesday was the day that Verica Trstenjak delivered her Opinion in Case C‑145/10 Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, SPIEGEL-Verlag Rudolf AUGSTEIN GmbH & Co KG and Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG.

Painer, a photographer, specialised in taking photos of children in nurseries and day homes. In the course of her professional work, she produced portrait photos of an Autrian girl, Natascha Kampusch, before her abduction in 1998. She designed the background, determined the position and facial expression, and produced and developed the photos. Meticulous in matters of detail, Painer had more than 17 years labelled the photos she produced with her name and business name. In her business she sold copies of her works but did not grant third parties any rights to the photos or consent to their publication. The purchase price which she charged for the photos thus concerned only the payment for the copies of works.

Following Natascha's abduction, the competent security authorities launched a search appeal in which the contested photos were used. In 2006, after Natascha escaped from her abductor. There being no current photos of her, the defendant Austrian and German newspapers published the Painer's photos of her in print and online without either crediting Painer or by misattributing them to someone else.They said they received the photos from a news agency. Also published was a photo-fit which was intended to show Natasha's presumed current appearance.  This was produced by a graphic artist using a computer program and was based on one of Painer's photos.

Painer sued for copyright infringement, seeking a prohibitory injunction relating to the reproduction of the photos and the photo-fit without her consent and without indicating her as author, plus remuneration and damages. Interim injunctive relief was also sought. Anyway, in proceedings before the Handelsgericht Wien, that court decided to seek preliminary guidance on the following questions:

"1. Is Article 6(1) of Regulation No 44/2001 [on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters] to be interpreted as meaning that its application and therefore joint legal proceedings are not precluded where actions brought against several defendants for copyright infringements identical in substance are based on differing national legal grounds the essential elements of which are nevertheless identical in substance – such as applies to all European States in proceedings for a prohibitory injunction, not based on fault, in claims for reasonable remuneration for copyright infringements and in claims in damages for unlawful exploitation?

2.(a) Is Article 5(3)(d) of Directive 2001/29 [on the harmonisation of certain aspects of copyright and related rights in the information society], in the light of Article 5(5) of that directive, to be interpreted as meaning that its application is not precluded where a press report quoting a work or other protected matter is not a literary work protected by copyright?

(b) Is Article 5(3)(d) of the directive, in the light of Article 5(5) thereof, to be interpreted as meaning that its application is not precluded where the name of the author or performer is not attached to the work or other protected matter quoted?

3.(a) Is Article 5(3)(e) of Directive 2001/29, in the light of Article 5(5) thereof, to be interpreted as meaning that in the interests of criminal justice in the context of public security its application requires a specific, current and express appeal for publication of the image on the part of the security authorities, i.e. that publication of the image must be officially ordered for search purposes, or otherwise an offence is committed?

(b) If the answer to question 3a should be in the negative: are the media permitted to rely on Article 5(3)(e) of the directive even if, without such a search request being made by the authorities, they should decide, of their own volition, whether images should be published ‘in the interests of public security’?

(c) If the answer to question 3b should be in the affirmative: is it then sufficient for the media to assert after the event that publication of an image served to trace a person or is it always necessary for there to be a specific appeal to readers to assist in a search in the investigation of an offence, which must be directly linked to the publication of the photograph?

4. Are Article 1(1) of Directive 2001/29 in conjunction with Article 5(5) thereof and Article 12 of the Berne Convention, particularly in the light of Article 1 of the First Additional Protocol to the ECHR and Article 17 of the Charter of Fundamental Rights of the European Union, to be interpreted as meaning that photographic works and/or photographs, particularly portrait photos, are afforded ‘weaker’ copyright protection or no copyright protection at all against adaptations because, in view of their ‘realistic image’, the degree of formative freedom is too minor?".

On Tuesday the Advocate General responded in a 215-paragraph Opinion which concluded thus:

"1. The notion of ‘close connection’ under Article 6(1) of Council Regulation ... 44/2001 ... is to be interpreted as requiring a single factual situation and a sufficient legal connection between the claim against the defendant who is domiciled in the place where the court is based (anchor claim) and the other claim. In a case such as the present, a single factual situation cannot be taken to exist where the contested conduct of the anchor defendant and of the other defendant appears to be unconcerted parallel conduct. A sufficient legal connection may exist even where different national law which is not fully harmonised is applicable to the two claims.

2.(a) Article 5(3)(d) of Directive 2001/29 ... is to be interpreted to the effect that a Member State has the power to permit the quotation of a work without the author’s consent even where the press report quoting the work is not itself protected by copyright.

(b) That provision also requires the person making the quotation to indicate the name of the author of a photo protected by copyright unless this turns out to be impossible. Indicating the author’s name does not turn out to be impossible where the person making the quotation has not taken all the measures to identify the author which appear reasonable having regard to the circumstances of the individual case.

3(a) Article 5(3)(e) of Directive 2001/29 is to be interpreted to the effect that in the case of a search appeal which pursues a purpose of public security within the meaning of that provision a Member State may permit the reproduction of copyright photos by the media even without the author’s consent if the purposes pursued by the search have not been fulfilled and the reproduction is objectively capable of pursuing those purposes.

(b) The media may not rely directly on that provision in order to justify a reproduction without the author’s consent.

4. Under Article 6 of Council Directive 93/98/EEC harmonising the terms of protection of copyright and certain related rights and of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights, a portrait photo is afforded copyright protection if it is an original intellectual creation of the photographer, which requires the photographer to have left his mark by using the available formative freedom.

The publication of a photo-fit based on a copyright portrait photo constitutes a reproduction within the meaning of Article 2(a) of Directive 2001/29 where the elements comprising the original intellectual creation of the template are also embodied in the photo-fit".

The IPKat finds this fascinating and looks forward to the final ruling.  This is the first time he can recall any ruling on whether a photo-fit constitutes an infringement of an original photograph.  He also notes the bit about "a portrait photo is afforded copyright protection if it is an original intellectual creation of the photographer, which requires the photographer to have left his mark by using the available formative freedom". It seems that the ECJ is increasingly shaping the content of national copyright law these days, by defining the scope of original intellectual creation in each case.

Merpel's just puzzled to know why the court insists on referring to Natascha Kampusch as "Natascha K".  Apart from the fact that various books and articles have been written about her -- and she has even written her own -- she appears to be better known than the President of Austria (a Google search gives her 898,000 hits to his 728,000). Oh, by the way, his name is Heinz F.